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Federal Register/Vol. 86, No. 117/Tuesday, June 22, 2021/Rules and Regulations Federal Register / Vol. 86, No. 117 / Tuesday, June 22, 2021 / Rules and Regulations 32637 requirements, Security measures, DEPARTMENT OF EDUCATION in light of the Supreme Court decision Waterways. discussed below. 34 CFR Chapter I In 2020, the Supreme Court in For the reasons discussed in the Bostock v. Clayton County, 140 S. Ct. preamble, the Coast Guard amends 33 Enforcement of Title IX of the 1731, 590 U.S. ll (2020), concluded CFR part 165 as follows: Education Amendments of 1972 With that discrimination based on sexual Respect to Discrimination Based on orientation and discrimination based on PART 165—REGULATED NAVIGATION Sexual Orientation and Gender Identity gender identity inherently involve AREAS AND LIMITED ACCESS AREAS in Light of Bostock v. Clayton County treating individuals differently because AGENCY: of their sex. It reached this conclusion ■ Office for Civil Rights, 1. The authority citation for part 165 Department of Education. in the context of Title VII of the Civil continues to read as follows: Rights Act of 1964, as amended, 42 ACTION: Interpretation. Authority: 46 U.S.C. 70034, 70051; 33 CFR U.S.C. 2000e et seq., which prohibits 1.05–1, 6.04–1, 6.04–6, and 160.5; SUMMARY: The U.S. Department of sex discrimination in employment. As Department of Homeland Security Delegation Education (Department) issues this noted below, courts rely on No. 0170.1. interpretation to clarify the interpretations of Title VII to inform Department’s enforcement authority interpretations of Title IX. ■ 2. Add § 165.T11–057 to read as over discrimination based on sexual The Department issues this follows: orientation and discrimination based on Interpretation to make clear that the gender identity under Title IX of the Department interprets Title IX’s § 165.T11–057 Safety Zone; Southwest Education Amendments of 1972 in light prohibition on sex discrimination to Shelter Island Channel Entrance Closure, of the Supreme Court’s decision in encompass discrimination based on San Diego, CA. Bostock v. Clayton County. This sexual orientation and gender identity (a) Location. The following area is a interpretation will guide the Department and to provide the reasons for this safety zone: The Northeast Shelter in processing complaints and interpretation, as set out below. Island Channel Entrance and all conducting investigations, but it does Interpretation: navigable waters of San Diego Bay not itself determine the outcome in any Title IX Prohibits Discrimination Based on Sexual Orientation and encompassed by by a three hundred particular case or set of facts. Gender Identity. DATES: This interpretation is effective yard circle centered on the coordinate Consistent with the Supreme Court’s ° ′ ″ ° ′ ″ June 22, 2021. 32 43 13.7 N, longitude 117 13 7.8 W. ruling and analysis in Bostock, the (b) Definitions. As used in this FOR FURTHER INFORMATION CONTACT: Department interprets Title IX’s section, designated representative Alejandro Reyes, Director, Program prohibition on discrimination ‘‘on the means a Coast Guard Patrol Legal Group, Office for Civil Rights. basis of sex’’ to encompass Commander, including a Coast Guard Telephone: (202) 245–7272. Email: discrimination on the basis of sexual [email protected]. orientation and gender identity. As was coxswain, petty officer, or other officer If you use a telecommunications the case for the Court’s Title VII analysis operating a Coast Guard vessel and a device for the deaf (TDD) or a text in Bostock, this interpretation flows Federal, State, and local officer telephone (TTY), call the Federal Relay from the statute’s ‘‘plain terms.’’ See designated by or assisting the Captain of Service (FRS), toll-free, at 1–800–877– Bostock, 140 S. Ct. at 1743, 1748–50. the Port Sector San Diego (COTP) in the 8339. enforcement of the safety zone. Addressing discrimination based on SUPPLEMENTARY INFORMATION: sexual orientation and gender identity (c) Regulations. (1) Under the general Background: Title IX of the Education thus fits squarely within OCR’s safety zone regulations in subpart C of Amendments of 1972, 20 U.S.C. 1681– responsibility to enforce Title IX’s this part, you may not enter the safety 1688, prohibits discrimination on the prohibition on sex discrimination. zone described in paragraph (a) of this basis of sex in any education program or section unless authorized by the COTP activity offered by a recipient of Federal I. The Supreme Court’s Ruling in or the COTP’s designated representative. financial assistance. The Department’s Bostock (2) To seek permission to enter, Office for Civil Rights (OCR) is The Supreme Court in Bostock held contact the COTP or the COTP’s responsible for the Department’s that sex discrimination, as prohibited by enforcement of Title IX. representative by VHF Channel 16. Title VII, encompasses discrimination OCR has long recognized that Title IX based on sexual orientation and gender Those in the safety zone must comply protects all students, including students identity. The Court explained that to with all lawful orders or directions who are lesbian, gay, bisexual, and discriminate on the basis of sexual given to them by the COTP or the transgender, from harassment and other orientation or gender identity ‘‘requires COTP’s designated representative. forms of sex discrimination. OCR also an employer to intentionally treat (d) Enforcement period. This section has long recognized that Title IX individual employees differently will be enforced from 8:30 a.m. until prohibits harassment and other forms of because of their sex.’’ 140 S. Ct. at 10:30 a.m. on June 22, 2021. discrimination against all students for 1742.1 As the Court also explained, not conforming to stereotypical notions Dated: June 16, 2021. of masculinity and femininity. But OCR 1 The Court recognized that the parties in Bostock T.J. Barelli, at times has stated that Title IX’s each presented a definition of ‘‘sex’’ dating back to Captain, U.S. Coast Guard, Captain of the prohibition on sex discrimination does Title VII’s enactment, with the employers’ Port Sector San Diego. definition referring to ‘‘reproductive biology’’ and not encompass discrimination based on the employees’ definition ‘‘capturing more than [FR Doc. 2021–13136 Filed 6–21–21; 8:45 am] sexual orientation and gender identity. anatomy[.]’’ 140 S. Ct. at 1739. The Court did not BILLING CODE 9110–04–P To ensure clarity, the Department issues adopt a definition, instead ‘‘assum[ing]’’ the definition of sex provided by the employers that the this Interpretation addressing Title IX’s employees had accepted ‘‘for argument’s sake.’’ Id. coverage of discrimination based on As the Court made clear, it did not need to adopt sexual orientation and gender identity Continued VerDate Sep<11>2014 18:13 Jun 21, 2021 Jkt 253001 PO 00000 Frm 00005 Fmt 4700 Sfmt 4700 E:\FR\FM\22JNR1.SGM 22JNR1 lotter on DSK11XQN23PROD with RULES1 32638 Federal Register / Vol. 86, No. 117 / Tuesday, June 22, 2021 / Rules and Regulations when an employer discriminates against Department’s interpretation of discrimination. In Bostock, 140 S. Ct. at a person for being gay or transgender, discrimination ‘‘on the basis of sex’’ 1740–41, the Court observed that Title the employer necessarily discriminates under Title IX and leads to the VII ‘‘tells us three times—including against that person for ‘‘traits or actions conclusion that Title IX prohibits immediately after the words it would not have questioned in discrimination based on sexual ‘discriminate against’—that our focus members of a different sex.’’ Id. at 1737. orientation and gender identity. should be on individuals.’’ The Court The Court provided numerous a. There is textual similarity between made a similar observation about Title examples to illustrate why ‘‘it is Title VII and Title IX. IX, which uses the term person, in impossible to discriminate against a Like Title VII, Title IX prohibits Cannon v. University of Chicago, 441 person’’ because of their sexual discrimination based on sex. U.S. 677, 704 (1979), stating that orientation or gender identity ‘‘without Title IX provides, with certain ‘‘Congress wanted to avoid the use of discriminating against that individual exceptions: ‘‘No person in the United federal resources to support based on sex.’’ Id. at 1741. In one States shall, on the basis of sex, be discriminatory practices [and] to example, when addressing excluded from participation in, be provide individual citizens effective discrimination based on sexual denied the benefits of, or be subjected protection against those practices.’’ Id. orientation, the Court stated: to discrimination under any education (emphasis added). program or activity receiving Federal Further, the text of both statutes Consider, for example, an employer with financial assistance . .’’ 20 U.S.C. two employees, both of whom are attracted contains no exception for sex to men. The two individuals are, to the 1681(a). discrimination that is associated with an employer’s mind, materially identical in all Title VII provides, with certain individual’s sexual orientation or respects, except that one is a man and the exceptions: ‘‘It shall be an unlawful gender identity. As the Court stated in other a woman. If the employer fires the male employment practice for an employer Bostock, ‘‘when Congress chooses not to employee for no reason other than the fact he (1) to fail or refuse to hire or to include any exceptions to a broad rule, is attracted to men, the employer discharge any individual, or otherwise courts apply the broad rule.’’ 140 S. Ct. discriminates against him for traits or actions to discriminate against any individual at 1747. The Court has made a similar it tolerates in his female colleague. Put with respect to his compensation, terms, point regarding Title IX: ‘‘[I]f we are to differently, the employer intentionally conditions, or privileges of employment, singles out an employee to fire based in part give Title IX the scope that its origins on the employee’s sex, and the affected because of such individual’s .
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